[Cite as State v. Mann,
2021-Ohio-554.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. Craig R. Baldwin, P.J.
Plaintiff - Appellee : Hon. W. Scott Gwin, J.
: Hon. Earle E. Wise, J.
-vs- :
:
ERIC MANN, : Case No. 2020CA00131
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court
of Common Pleas, Case No. 2020-
MI-00113
JUDGMENT: Dismissed
DATE OF JUDGMENT: February 26, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO MARK F. GRAZIANI
Prosecuting Attorney Graziani Law, LLC
Stark County, Ohio P.O. Box 1158
Norton, Ohio 44203
By: KATHLEEN O. TATARSKY
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza South- Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2020CA00131 2
Baldwin, J.
{¶1} Defendant-appellant Eric Mann appeals from the August 25, 2020
Judgment Entry of the Stark County Court of Common Pleas denying his Motion for Relief
from Judgment pursuant to Civ.R. 60(B)(5).
STATEMENT OF THE FACTS AND CASE
{¶2} In 2000, appellant was convicted of one count of domestic violence under
R.C. 2919.25(A). On July 1, 2020, appellant filed a Petition for Relief from Federal and
State Firearms Disability. Pursuant to a Judgment Entry filed on July 14, 2020, the trial
court denied the petition.
{¶3} Appellant, on July 22, 2020, then filed a Motion for Relief from Judgment
under Civ.R. 60(B)(5). A hearing was held on August 24, 2020. The trial court, as
memorialized in a Judgment Entry filed on August 25, 2020, denied the motion. The trial
court found that domestic violence was a criminal charge that was not expungable.
{¶4} Appellant now appeals from the trial court’s August 25, 2020 Judgment
Entry, raising the following assignments of error on appeal:
{¶5} “I. THE TRIAL COURT ERRED BY FAILING TO CONTINUE THE
MATTER WHEN IT LEARNED AT TRIAL THAT THE PROSECUTOR HAD NEITHER
BEEN SERVED WITH THE INITIAL PLEADING NOR INVESTIGATED THE MATTER,
AS SPECIFICALLY REQUIRED BY THE LANGUAGE IN §2923.14(C).”
{¶6} “II. THE TRIAL COURT ERRED BY IMPROPERLY CONCLUDING THIS
ACTION, FILED UNDER §2923.14 RELIEF FROM WEAPONS DISABILITY, WAS AN
ATTEMPT TO “EXPUNGE” A DOMECTIC VIOLENCE (DV) CONVICTION, AND THEN
RULED FROM THIS WHOLLY-INCORRECT BASIS.”
Stark County, Case No. 2020CA00131 3
{¶7} “III. THE TRIAL COURT ERRED BY IGNORING THE SUPREME COURT
OF OHIO’S GUIDANCE ON THE RESTORATION OF FIREARM’S RIGHTS, THE
SUPREME COURT’S GUIDE TO FIREARMS RETURN IN DOMESTIC VIOLENCE
CASES, UNEQUIVOCALLY DISCUSSING §2923.14 AS THE VEHICLE FOR RELIEF
FROM FIREARMS DISABILITY.”
{¶8} We must first determine whether or not this Court has jurisdiction to
consider appellant’s appeal. As is stated above, after the trial court denied his petition on
July 14, 2020, appellant filed a Motion for Relief from Judgment under Civ.R. 60(B)(5).
Appellant then filed a Notice of Appeal on September 11, 2020, appealing from the trial
court’s August 25, 2020 Judgment Entry denying such motion.
{¶9} However, it is well settled that Civ.R. 60(B) “is not available as
a substitute for a timely appeal … nor can the rule be used to circumvent or extend the
time requirements for an appeal.” Blasco v. Mislik, 69 Ohio St.2d 684, 686,
433 N.E.2d
612 (1982). “When a Civ.R. 60(B) motion is used as a substitute for a timely appeal, and
when the denial of that motion is subsequently appealed, the proper response is the
dismissal of the appeal.” Garrett v. Gortz, 8th Dist. Cuyahoga App. No. 90625, 2008–
Ohio–4369, at ¶ 14, citing State ex rel. Richard v. Cuyahoga Cty. Commrs.,
89 Ohio St.3d
205,
2000-Ohio-135,
729 N.E.2d 755.
Stark County, Case No. 2020CA00131 4
{¶10} Appellant, in the case sub judice, did not timely appeal from the trial court’s
July 14, 2020 Judgment Entry. Appellant clearly is attempting to use a Civ.R. 60(B)
motion as a substitute for a timely appeal from the trial court's July 14, 2020 Judgment
Entry.
{¶11} Appellant’s appeal is, therefore, dismissed as untimely.
By: Baldwin, P.J.
Gwin, J. and
Wise, Earle, J. concur.
